At Interior, we’re ready to bring the Endangered Species Act up to date

A monarch butterfly. (Devon Ravine/AP)

ByDavid Bernhardt

August 9, 2018

David Bernhardt is deputy secretary of the interior.

A modern vision of conservation is one that uses federalism, public-private partnerships and market-based solutions to achieve sound stewardship. These approaches, combined with sensible regulations and the best available science, will achieve the greatest good in the longest term.

Last month, the Trump administration took this approach to bringing our government’s implementation of the Endangered Species Act into the 21st century. We asked ourselves how we can enhance conservation of our most imperiled wildlife while delivering good government for our citizens. We found room for improvement in the administration of the act.

When Congress created the Endangered Species Act, it built a tiered classification for our most at-risk wildlife, designing different protections for “endangered” and “threatened” species. The act was designed to give endangered species the most stringent protections while affording federal agencies the authority to tailor special rules for lower-risk, threatened species on a case-by-case basis.

It may surprise most Americans, however, that the highest level of protection is often applied, regardless of the classification, through application of a “blanket rule.” The use of this rule by the U.S. Fish and Wildlife Service automatically elevates protections for threatened species to the same level as those given to endangered species.

But automatically treating the threatened species as endangered places unnecessary regulatory burden on our citizens without additional benefit to the species. The blanket rule reflexively prohibits known habitat management practices, such as selective forest thinning and water management, that might ultimately benefit a threatened species.

We need creative, incentive-based conservation, but that becomes impossible with the current blurring of the lines between the two distinctions. This muddle discourages collaborative conservation from the parties we most need to partner with us — states, tribes and private landowners — ultimately harming species that can thrive with a more tailored approach.

The National Oceanic and Atmospheric Administration, a federal agency that also administers the act, understands this. NOAA has never employed a “blanket rule,” and we propose to follow this approach.

The Endangered Species Act provides intensive care for the species with the greatest need in order to ensure they survive for future generations. Like with a hospital’s intensive care unit, the goal is not to keep patients there forever. The goal is recovery — to send the healthier patients home where they can continue to receive the lower level of care they still need.

The criterion for admission to a hospital’s ICU is the same as it is for discharge: critical need. The same principle applies to the act, but over the years, the standards for down-listing (from endangered to threatened) and altogether delisting a species have been pushed higher than the standards for initially granting protection under the act.

We are proposing to clarify that the standards for listing and delisting are identical. With limited resources, we cannot and should not keep recovered species on the list forever. We must return conservation management back to the capable hands of the states and focus our federal protections and resources on those species that need them most.

These changes are just some in a series of proposals that will improve the administration of the Endangered Species Act, encouraging collaborative conservation and leveraging flexibility to incorporate innovation.

We are also clarifying the meaning of certain terms that are in the act itself but not defined. For example, the law allows us to list species as threatened when they are likely to become endangered in the foreseeable future, but it does not explain what “foreseeable future” means. We aim to provide the public and our federal agencies with a universal language that will increase regulatory certainty.

In addition, we want to keep everyday Americans apprised of the impact the government’s work will have on them. We will continue to consider only the best scientific and commercial data in our listing determinations, as required by the act. But collecting data about the economic impacts of a species listing and presenting it to the public increase transparency — a hallmark of good government.

This is the first step in a deliberative process. Rather than allowing special-interest groups to start and end the debate, we will give everyone — including the local voice and the rural voice — an opportunity to have their say. We have kicked off a 60-day public-comment period, after which we will evaluate the feedback and move forward, making adjustments where appropriate.

Familiar faces have come out in opposition to the proposal, which is no surprise, though sadly, much of their response has been hyperbolic and unhelpful in promoting constructive discussion. But they, too, should submit their ideas, because the status quo is unacceptable for everyone — including the various species of flora and fauna that merit the act’s protection.